Supreme Court: Decision not to run accomplice point was that of the accused and warning was not necessary

A convicted murderer who argued that the judge in his trial should have given an accomplice warning to the jury in relation to evidence from one of the key prosecution witnesses has lost his appeal to the Supreme Court.

Dismissing the appeal, Mr Justice Peter Charleton said that the decision not to run the accomplice point was the accused’s decision and the court was required to avoid any intrusion into his defence.

Background

In the early hours of 18 December 2006, Noel Crawford was shot dead while standing outside his parent’s house in O’Malley Park, Limerick city.

According to Laura Kelly, who lived in O’Malley Park with her partner, Jonathan Kiely, and four children; shortly before midnight on 17 December, her nephew arrived at their house with Jonathan Fitzgerald and Michael O’Callaghan.

Ms Kelly’s evidence at Mr Fitzgerald’s trial for Noel’s murder was that she overheard a conversation between Mr Fitzgerald and Mr O’Callaghan about a possible attack on Paul Crawford. Around 20 minutes after arriving at her house, she told them she wanted them out of her house, and shortly thereafter witnessed Mr Fitzgerald and Mr O’Callaghan putting on bulletproof vests in the back garden.

The court heard that some little time later, Ms Kelly and her partner heard two shots.

Mr Fitzgerald and Mr O’Callaghan arrived back at her house, with Mr Fitzgerald stating, “I got him, I got him, I got Paul Crawford”. However, in fact, it was Noel Crawford who had been shot dead.

Ms Kelly’s evidence was that Mr Fitzgerald put his clothes into the fireplace to burn, and that, under duress, she erased security camera tapes out of “absolute fear”. She said that Mr Fitzgerald instructed her to tell gardaí that he and Mr O’Callaghan had arrived at the house after her window got shot in later that night. Ms Kelly said that she complied with Mr Fitzgerald because she was afraid she would be “body number two”.

At Mr Fitzgerald’s trial, Mr Kiely claimed to be a drug addict and said he had no recollection of the night. However, his witness statements were admitted as evidence under section 16 of the Criminal Justice Act 2006.

Ms Kelly and Mr Kiely’s evidence was a “central building block of the prosecution case”.

Accomplice warning

In respect of Mr Kiely, the trial judge warned the jury that he had been arrested as a suspect in the aftermath of the murder – therefore they should be “very wary of his evidence” and “should look for corroboration of his testimony”.

In respect of Ms Kelly, it was Mr Fitzgerald’s case that he had no interaction at all with her in relation to the crime. Mr Justice Charleton said it was clear from the trial transcript that Mr Fitzgerald wanted to put across to the jury that he had arrived at Ms Kelly’s house well after the murder had taken place, and that he was an innocent person caught up in suspicion merely because he had sought a place to sleep or of refuge independently of any crime that he had committed.

Furthermore, on the day before the trial judge’s charge, counsel for the DPP had addressed the judge “out of an excess of caution” and asked that counsel for the defence might consider whether there was a need for an accomplice warning.

The trial judge decided that Mr Kiely might be regarded an accomplice “insofar as he was arrested on suspicion of possession” of the shotgun used to shoot Noel Crawford. However, in absence of any defence submission, the trial judge did not put to the jury any issue as to whether Ms Kelly might be an accomplice or attach any warning.

In February 2011, Mr Fitzgerald was convicted of murder by a jury and later sentenced to life imprisonment.

Court of Criminal Appeal

In the Court of Criminal Appeal, Mr Fitzgerald argued that, once circumstances give any possible indication that a witness may be an accomplice, the trial judge should have given an accomplice warning regardless of whether the defence put it to the witness that he or she may have acted as an accomplice. It was submitted that this is an absolute rule.

The Court of Criminal Appeal held that the trial judge could not be “faulted for putting before the jury the actual case presented by the defence and not putting before the jury a case, which while one that was open on the papers, was one in which the defence had shown no interest whatever”.

Supreme Court

In the Supreme Court, the five-judge Court considered whether the accomplice warning is always to be given, even where the point is not relied upon by counsel for the accused.

Mr Justice Charleton said that it was clear from the transcript that counsel for the defence had “clearly taken instructions which were not to the effect that Laura Kelly was an accomplice to the crime, or that she had done anything after the crime”, but rather that Mr Fitzgerald had no interaction at all with her in relation to the crime.

As such, the decision not to run any accomplice point was that of Mr Fitzgerald, and counsel acted properly in putting his matrix of fact to the relevant witnesses.

Mr Justice Charleton said that any intrusion of a rule of law which would have made it necessary for Mr Fitzgerald “to somehow allege that Laura Kelly had become an accomplice after-the-fact would have been an intrusion into his entitlement, basic to every criminal trial, to assert through counsel the facts which he claimed to be true and which, as he was entitled to contend, amounted to his defence”.

He added: “Since the Constitution in Article 38.1 guarantees to all accused persons a trial in due course of law, it may be postulated as a matter of principle that an accused person cannot waive, for instance, the burden of proof beyond reasonable doubt in favour of postulating that he or she should be convicted if the evidence merely pointed to his or her probable guilt.”

Dismissing the appeal, Mr Justice Charleton said that no exceptional circumstances arose in the case as a basis for the trial judge interjecting and raising a point not pursued by the accused.